Wednesday, 27 February 2019

As
the movie industry in Uganda continues to grow, so do the squabbles among some
of the players that feed into and out of that industry. However, as an
optimist, I can say that there does seem to be a faint light at the end of the
tunnel that keeps glowing brighter. Ordinarily, a Collecting Society is meant
to make the job of collecting royalties easier for its members. Basically, if
one cannot realistically go around collecting royalties for his or her
hard-earned work in the creative arena, then let the Collecting Society for
which he or she is a member undertake that responsibility. In return, the
Collecting Society must jealously guard the member’s copyright assigned to it; ensure
efficient accountability of funds collected; and periodic remission of those
funds to its members. All this time, the Uganda Registration Services Bureau
(URSB), which is the Ugandan government’s Intellectual Property Office, is
meant to play the role of “Big Brother” by ensuring that the Collecting
Societies and their members abide by their obligations as spelt out in the
Copyright and Neigbouring Rights Act of 2006 (CNRA). This, at least, is what some
members of Uganda Federation of Movie Industry (UFMI) explained as their
expectation from UFMI and URSB – an expectation which, in their view, was not
being fulfilled.

Early
in 2018, a group of seventeen artists in Uganda’s Movie Industry, led by Julius
Bwanika and Gerald Sserunjogi, filed a case against UFMI and URSB in the High
Court of Uganda (Bwanika Julius and Ors v. Uganda Registration Services Bureau
& Uganda Federation of Movie Industry, Misc. Cause. No. 083 of 2018). The
case was filed by way of an application for judicial review to compel a
Government Institution to abide by its duties. In a nutshell, the prayers
before Court were for URSB to fulfill its statutory obligations as a
supervisory body over Collecting Societies in Uganda and reign in on UFMI; and
for UFMI to furnish accountability over its activities as well as terminate
illegal issuance of licenses to audio-visual vendors. Opportunities for
resolving the matter through mediation were explored without success and
towards the third quarter of 2018, the parties went back to Court. On the face
of the case, it was clear that UFMI had been flouting some of its obligations
under the law (CNRA). For instance, there was no record of audited accounts; no
records on income and expenditure; no establishment of a Provident and
Benevolent Fund; and, no provision of a security device on all audio-visual
recordings under its membership. Meanwhile, URSB too, had not been cracking the
whip on UFMI.

In
its defense, UFMI argued that it has been going through turbulent times over
the past few years with a lot of infighting, disorganization and limited
operational funds. As such, it is only beginning to stabilize itself in the
murky waters of Uganda’s entertainment industry to take care of all the
concerns of its members. As part of its efforts in re-establishing itself, a
General Assembly of its members was held in January of 2018 and new Leaders
were brought on board to run the Society. The ‘elephant in the room’ over that
matter was that the Seventeen artists that instituted the Court proceedings
considered themselves as members of UFMI but were not recognized as such by the
current UFMI leaders. These Seventeen, therefore did not recognize the General
Assembly of January 2018 and were demanding for a fresh General Assembly in
which they can also come in and contest for leadership of the Society. Not only
that, they also contended that UFMI was wrongly constituting itself as a
Collecting Society for all artists in the Visual entertainment
industry and thus stifling growth and expansion of the creative industry into
other areas. As such, the argument was that Performers – inclusive of standup
comics – and producers, should not all be bundled up together under UFMI.

In
his judgment delivered in mid February 2019, his Lordship Justice Musa Ssekaana pointed out that although it
was clear that UFMI has not been able to comply with the law, blame games do
not help to resolve the current impasse between the parties. The judgment goes
on to add that the “1st Respondent (URSB) should render guidance to
the 2nd Respondent (UFMI) on how to make or amend the Constitution
that would govern and include all the members. The membership should [be][sic] open to any person who is a
stakeholder of the Film and Movie Industry. Once a person is admitted as a
member of the organization, he/she should always remain a member but is
supposed to pay annual subscription fees to activate his or her membership or
be able to take part in the affairs of the organization. . .” The judgment states
further that “it was wrong to merge a federating body with a Collecting Society
because the two institutions do totally different works and as such, cannot be
merged whatsoever. The single role of a Collecting Society is to collect
royalties and distribute them on behalf of their members. The membership for a
Collecting Society of Audio Visual Society [sic]
in this case should be restricted to either producers or performers.”

The
final nail on the UFMI coffin is when the judgment states that: “The 1st
respondent (URSB) should consider separating societies like in some
jurisdictions by having a Society for Authors, performers and Producers because
the nature of interests from the rights holders is normally different and, as
such, requiring the separation of Copyright holders and related rights holders.
This is buttressed by the fact that it is only authors, producers and
performers who are entitled to equitable remuneration as provided under Section
31 of the Copyright and Neighbouring Rights Act of 2006. The solution in this
case would be that URSB which is the one that issues Collecting Society
licenses, calls on fresh applicants with knowledge and experience in copyright
management to take on the roles of a Collecting Society for the Film Industry.”
Essentially, Justice Ssekaana was agreeing with the Petitioners that UFMI needs
to be disbanded because in its current format, it cannot play the role of
Collecting Society for different categories of artists within the movie
industry.

The
Court then granted the prayers of the applicants and ordered URSB to guide the
stakeholders in getting a competent and qualified Collecting Society for the
Film Sector in accordance with the law. This ruling on the disbandment of UFMI
thus leaves Uganda with currently only two Collecting Societies – the Uganda
Performing Rights Society for music artists and producers of audio-visual
works, and the Uganda Reproductive Rights Organization for book publishers and
authors. It will be interesting to see how the film industry re-aligns itself to
get back on track in the collective management of royalties. Hopefully, with
the help of URSB, this will be sooner than later because of the promising
nature of the film industry. In the meantime, thanks to this judgment, URSB
itself is now cognizant of the fact that it must up its game as “Big brother”
in the supervision of Collecting Societies in Uganda.

The writer is a legal
scholar and Intellectual Property law practitioner at Sipi Law Associates.

Tuesday, 5 February 2019

It appears to have so far gone unrecognised on this blog, but one of our very own is the first African correspondent over on the insanely busy extraordinary IPKat blog. See the announcement, here. Fittingly, Chijioke Okorie blogs on Afro IP as a lady leo, and is now perhaps the biggest cat on the block in Europe?

Congratulations!!

We look forward to reading more great posts on IPKat, now with more of an African perspective.

Wednesday, 30 January 2019

The South African Institute of Intellectual Property Law's 6th issue of its IP Briefs edited and compiled by Dr Madelein Kleyn is out. You can read it all here. In this issue:

Vanessa Ferguson, the SAIIPL president for 2019, outlines the focus of SAIIPL for the current year, having take the reigns from Debbie Marriott who presided over the Institute in 2018. Morne Barradas' piece then assesses how and why patent assets can become valuable to a business.

There is an interesting article from Nordely Wright on the steps that one can take to protect confidential information when dealing with the Competition Commission. This is followed by Amanda Lotheringen's holistic approach to training law enforcement agencies that are so vital to protecting IP rights.

The issue goes abroad and obtains a view from Professor Charles Gielen, former partner of the eminent firm NautaDutilh NV, on the Court of Justice decision of the EU on the technical function exclusion in design law, reviewing the Doceram decision (the first case to deal with it).

Getting local again, Thapelo Montong, the bright patent lawyer at Adams & Adams, contemplates inventorship in the age of artificial intelligence and concludes that under current patent laws, all inventions from superhuman AI machines could well be free and open to the public, at least until antiquated patent laws undergo reform.

There is news too that Wend Wendland, the respected policy strategist and capacity builder, and trainer, has gone online to share his experience and advice in a new blog "Multilateral Matters" which is featured on the IP Unit website of the University of Cape Town.

Tuesday, 29 January 2019

The UKIPO has been helpful in providing regular updates on what would happen to intellectual property rights of those with interests in the UK post Brexit, in the event of a no-deal. The latest update published recently sets out the various rights and explains what would happen to each:

The implications are, generally, that existing EU rights would remain in force and that provisions for a separate right covering the UK would be created, with minimal administrative burden. Despite these assurances though, many EU rights holders have already seen fit to re-file or at least reconsider their portfolio as it applies to the UK. The uptick in national UK national filings shows the trend and African rights holders would do well to consider the same approach.

The debate and uncertainty over Brexit is tedious yet remains captivating and crucially important for anyone with trade, business or personal interests in Great Britain. Most countries and many citizens of Africa fall into that category, and even on the continent's most southern tip it is also a potentially very emotive topic. Only the bold or mischievous raise the topic at dinner tables. It is treated with the same trepidation as religion, abortion and politics for the topic has the same capacity to interrogate fundamentals.

When Great Britain catches a cold, Africa gets pneumonia, as the saying goes. GB is one of Africa's most important trading partners. Any slight, let alone momentous (even if temporary), change to the economic climate in GB affects Africa.

This truth underlines the concerns raised by South Africa's trade minister Rob Davies in a recent BusinessReport news article in which he warns of the potential devastating impact a no-deal Brexit would have on the South African economy. Highlighting the wine industry which produces 40% of its export for the UK market, he explains that the European Partnership Agreement reached with Europe in 2016 saw South Africa's duty free quota to Europe increase from 48 to 110 million litres. The implication, it appears, is that this progress in trade for South Africa would be jeopardised. This is despite, British High Commissioner Nigel Casey's assurances in late November last year.

In the same article Dawie Roodt and Mike Schussler, both leading economists, warn that if Brexit is disruptive, even a small contraction in the British economy would be hard felt in South Africa, citing exchange rate fluctuations and trade implications. However, Schussler admits admits that the effect if difficult to predict, and impossible to influence.

Thursday, 24 January 2019

Afroleopa
has been rather busy of late, but is still very committed to fulfilling her
promise to keep readers abreast of events in COSONIA.
So, here is a miscellany with a brief round-up of the current events and issues.

Accountfrozen butspending continuesAfroleopa
has heard
that despite the freezing order, it appears to be that COSON continues to have
access to its bank accounts as the Okoroji-led Board continues to disburse
funds for its expenses.

Some
corporate members of the Copyright Society of Nigeria (COSON) approached the
court and claim
to have secured an order freezing the accounts of COSON. This is in a bid to
stop the allegedly ousted Chairman, Chief Tony Okoroji and his board members from
spending the society’s monies while the suspension of COSON licence remains in
place. Afroleopa had wondered
about the possibility of the Nigeria
Copyright Commission (NCC) procuring a freezing order on
COSON’s bank accounts in order to lend (more) efficacy to its suspension order.

Back in November 2018, COSON announced
that it would be holding an Extra-Ordinary General Meeting (EGM) in December 2018. Special
resolution proposed to be passed the meeting were to distribute the sum of N81,520,000
(approximately $224,000) amongst members and to ratify “legal and security measures taken by the
Board and Management in the last one year to protect the society from
instability and disintegration”.

If COSON’s tweets are
anything to go by, the meeting held as scheduled and the proposed resolutions were
passed despite calls that the meeting was illegal
given the suspension of COSON’s licence.

No revocation of license despite
fears

Back
in June
2018, AfroLeopa attended a press conference co-convened by the president of
the Association of Music Business Professionals (AM.B-Pro), Mr. Edi Lawani
under the auspices of Concerned Stakeholders’ Forum. The majority of the
music artists and COSON members, who spoke at the event, expressed fears that
the suspension of COSON’s licence may be commuted to a revocation based on
Regulation 20 of the CMO
Regulations. Regulation 20 (2) of the CMO Regulations stipulates that a suspension
order from the NCC may be commuted to a revocation of licence if the collecting
society fails to comply with the directives that led to its suspension in the
first place.

COSON’s
license has not been revoked.

New Director-General appointed for
the Nigerian Copyright Commission

Last week, newspapers reported
that Mr. John Asein has been appointed the Director-general of the NCC. Prior to
his appointment, Mr Asein was the director of the Nigerian Copyright Institute,
the training and capacity building arm of the NCC. He takes over from the
previous Director-General, Mr. Afam Ezekude.

With a change in leadership of the
NCC, there may be a change in direction towards ensuring adherence to good
corporate governance principles within COSON and in other collecting societies
in Nigeria. Mr. Asein will be the first in-house Director-General at the NCC in
decades.

Some thoughts

It seems to Afroleopa that the NCC’s regulation of COSON lacks
compellability. COSON has repeatedly flouted NCC’s orders with no apparent
consequence. As Afroleopa has repeatedly stated on this blog, this affects not
only COSON; it also affects its members, other collecting societies and the
general copyright community. A situation where a sector regulatory authority
cannot compel compliance from regulated entities cannot bode well for the
sector.

Just last week, the Federal Government unveiled
the Corporate
Governance Codeapplicable to all public companies. This would include
collecting societies where they are public companies. The Code notes that several
industry regulators such as the
Nigerian Communications Commission (for telecommunication sector), the Central
Bank of Nigeria (for the banking sector), and the National Insurance Commission
(for the insurance sector) had developed corporate governance codes for
companies operating in their sectors, in response to challenges in their
respective sectors. The Code further states that the Financial Reporting
Council will monitor implementation through the sector regulators.

In the circumstances, it would be helpful
for the NCC to be primed to ensure the implementation of the Code by collecting
societies. Also, the NCC may either develop an appropriate code of corporate
governance for collecting societies or formally adopt the Code of Corporate
Governance unveiled by the Federal Government.

CREATIVE COMMONS LICENSE

AWARDS AND RECOGNITION

Afro-IP was voted top 25 foreign and international legal blogs by LexisNexis, is listed on Managing Intellectual Property's guide to IP blogs worldwide, is listed on IPKat's blogroll, was nominated on Nigerian Law Intellectual Property Watch's guide to African IP resources, was voted in the World's Best IP blogs by BIP Counsels and in 2017 in the Top 100 IP Blogs on the Planet!